As police body camera footage receives increased scrutiny on Oahu and nationwide, some Honolulu police commissioners and others are arguing that more should be done to hold officers accountable when they fail to record their encounters with the public.

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Currently, HPD considers it a minor offense when officers fail to activate their body worn cameras, and punishments are commensurately light. But some critics say harsher penalties like suspensions may be needed and that the testimony of officers who neglect to record their work should be downplayed in court.

The Honolulu Police Department needs to take body camera violations more seriously, Police Commissioner Doug Chin said. 

“Otherwise, officers are going to be put into a bad position where they might start turning off their cameras before they’re about to do something they know they’re not supposed to do,” he said. 

HPD Sgt. Henry Roberts at a HPD press conference announcing 35 officers in downtown are using cameras on a daily basis. Sgt Roberts was sharing that by pressing this button twice, that activated the camera including 30-seconds prior to activating the camera too. 13 aug 2018
HPD supervisors aren’t allowed to proactively check that their subordinates are following body camera rules. Cory Lum/Civil Beat

Honolulu officers are required by policy to turn their cameras on whenever they respond to a call for service or initiate an encounter with a member of the public. The resulting footage can be critical to providing clarity after intense situations – whether it’s capturing a suspect committing a crime or an officer accused of using excessive force. 

Footage has fueled conversations about police accountability in Hawaii and across the United States. In many cases, video evidence has contradicted or challenged the initial police department narrative that deadly force was justified.

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Footage obtained by The Associated Press last week shows Louisiana state troopers jolted and punched a Black man who pleaded for mercy before they dragged his body on the ground. Police initially told the man’s family that he died after crashing his car into a tree. They later said he died after a struggle with state troopers, the AP reported.

Louisiana authorities refused to release the video to the public for two years. In contrast, Ohio officials released video within hours of officers shooting a 16-year-old girl who was allegedly menacing others with a knife. The cases exemplify the uneven way in which the nation’s police departments make decisions about public disclosure.

Honolulu is engaged in its own debate about the release of footage in the case of 16-year-old Iremamber Sykap, whose vehicle was shot at by officers at least a dozen times on April 5, according to a wrongful death lawsuit. The Honolulu Police Department has refused to release body camera footage from the officers involved, sparking pushback from the community, police commissioners and City Council Chair Tommy Waters, who is considering legislation to force disclosure.

But weeks before Sykap’s death, Honolulu police commissioners had honed in on another problem: What happens if there’s no footage at all?

Officers sometimes fail to turn on their cameras or turn the recordings off prematurely, according to commissioners. As for how often that happens, it’s tough to say.

HPD policy, which was written in collaboration with the police union, states that supervisors are forbidden from conducting random checks of their subordinates’ footage for correct body camera use. The internal affairs office recently started doing random inspections but limits them to 10 cases per month. 

When violations are found – either through public complaints or the internal affairs office – HPD policy categorizes it as the most minor type of infraction. That means that officers receive the lightest possible punishments: either divisional counseling, which isn’t considered official discipline, or a written reprimand. 

Former Kauai Police Chief Darryl Perry, whose department was the first in Hawaii to introduce cameras, said that doesn’t send a strong enough message. 

“It has to be severe enough so these police officers don’t do it again,” he said. 

Former Kauai Police Chief Darryl Perry, who pioneered body camera usage in Hawaii, said HPD needs to send a message that it takes camera activation seriously. Nick Grube/Civil Beat

Missing footage can have critical implications for examinations of police violence, potential police misconduct and criminal cases in general. 

When the police commission receives complaints from the public about an officer, body camera footage is a major factor in the group’s recommendations about officer discipline, according to Commissioner Michael Broderick.

“In those cases where the camera was turned on, it’s almost always determinative of what we decide,” the former family court judge said during a March meeting. “In other words, the camera gives us exactly what we needed to know.” 

In the recent shooting of Lindani Myeni, a South African father of two, one of the three responding officers failed to turn his camera on, HPD said. 

Although footage exists from the other two officers, the unrecorded interaction between that one police officer and Myeni leaves many questions unanswered, said Jacquie Esser, a public defender.

“That officer seems like he’s key to what was being said, what was going on between them, because it appears that he’s the first officer on the scene,” she said. “It’s really frustrating.”

And when officers fail to activate their cameras, judges and juries have to decide whose story they believe – the police or the defendant – without being able to see the encounter for themselves. 

Esser said missing footage puts her clients at a disadvantage.

“The public has a hard time, unless they see it, believing that police officers lie or get things wrong,” she said. 

‘There’s No Excuse’

Most of HPD’s 1,800 sworn officers wear body cameras, which the department has been deploying to officers in waves since 2017.

There are about 1,200 cameras assigned to officers in the eight patrol districts and the traffic division. Plainclothes officers don’t wear them, although department officials said they are exploring that possibility. 

Punishment for violating the policy depends on the officer’s history, according to HPD spokeswoman Michelle Yu.

Right, HPD officer Joelyn DeCaires stands w/ left colleague Sgt. Henry Roberts at a HPD press conference announcing 35 officers in downtown are using cameras on a daily basis. 13 aug 2018
Officers who violate the body worn camera policy typically get a stern talking-to or a written reprimand. Cory Lum/Civil Beat/2018

“Generally, the first violation of the body-worn camera policy would result in a counseling by the division commander, and the second would result in a written reprimand,” she said in an emailed statement. “For a third or any subsequent violation, progressive disciplinary action would be taken and the officer may be subject to suspension or possible discharge.”

Since cameras were introduced, no HPD officers have been suspended for a body worn camera violation alone, according to HPD’s annual misconduct report to the Legislature, although the failure has been noted in cases involving offenses considered more serious.

Perry said the severity of a situation should be a factor in officer discipline.

“If there is a police shooting and (the officer says) ‘Oops I forgot to turn it on,’ that calls for a more severe sanction than just a written reprimand,” he said. “I would say a suspension would be more appropriate in that case.”

In 2020, the department investigated 65 officers for potential violations of the city’s body-worn camera policy, former deputy chief Aaron Takasaki-Young told the Honolulu Police Commission in March

Those officers were involved in 45 separate incidents, he said, meaning that multiple officers at some of the same scenes neglected to turn their cameras on. 

Of the officers investigated, 39 – or 60% – were found to have violated the policy and underwent some kind of “corrective action,” Takasaki-Young said. He didn’t detail what kind of action was taken. Of the remaining cases, 17 were still pending at the time of Takasaki-Young’s presentation, and nine were not found in violation. 

The department has not released updated numbers since that meeting, and HPD declined requests to interview Takasaki-Young or another HPD official about the body worn camera policy and violations. 

HPD has been deploying body worn cameras to officers in waves since late 2017. Anthony Quintano/Civil Beat

The officers disciplined for body camera violations in 2020 represent just over 3% of HPD personnel outfitted with cameras and their cases added up to an even smaller percentage of total interactions between Honolulu police and the public. HPD responded to approximately 600,000 calls for service last year, according to Yu. 

Still, there is growing concern locally and nationally that officers’ failure to activate cameras is a problem.

“I think that’s high,” Perry said of the 39 officers disciplined last year. “To me, there is no excuse when the cameras aren’t activated.” 

During his time as chief on Kauai, not a single officer was disciplined for failing to turn on a camera, according to Perry. 

“It was always on,” said Perry, who retired in 2018. “They kept it on. They understood it was for their own good and their own protection.”

Kauai police spokeswoman Coco Zickos said while no KPD officers have been disciplined for body camera violations, there have been times when KPD officers neglected to turn them on. In those cases, officers are required to inform the professional standards office, Zicko said.

Last year, KPD had 34 “failure to activate” reports, which could result from a dead battery, inoperable camera or officer error, she said. Unlike HPD, the Kauai department does not restrict its supervisors from checking whether their officers are following the rules.

Perry believes HPD’s stats suggest a lack of training and reinforcement by supervisors that officers need to be turning their cameras on. 

He also said HPD needs to allow supervisors to check on their officers for body worn camera compliance.

“Supervisors should be given the authority to do random checks whenever necessary,” he said.

Malcolm Lutu, president of the State of Hawaii Organization of Police Officers, did not respond to a request for comment.

At the March Police Commission meeting, Takasaki-Young said HPD is taking several steps to increase body camera use.

Former Deputy Chief Aaron Takasaki-Young said the department is trying to increase body camera policy compliance. Screenshot: Honolulu Police Commission livestream

Officials are exploring the possibility of online training to “reinforce the policy requirements” as well as annual training, Takasaki-Young said. And HPD recruits are already being trained to use the cameras.

In addition, HPD’s cameras came with “signal devices” that can be installed in patrol cars. 

Until recently, they went unused, according to Takasaki-Young. But the department was looking into activating them so that if officers open their doors or turn on their lights and sirens, the device would activate the camera automatically. 

Lack Of Footage Affects Administrative, Criminal Cases

Body camera footage has been a recurring topic at meetings of the Honolulu Police Commission, which is charged with reviewing public complaints and recommending discipline. 

LG CD1 Candidate Doug Chin Debate Kamehameha Schools.
Police Commissioner Doug Chin and his colleagues have expressed concern about the number of officers failing to activate their cameras. Cory Lum/Civil Beat

Not having footage can leave commissioners without enough evidence to substantiate a citizen’s allegation, Chin said.

“We’re left with having to go on one person saying, ‘This is what happened’ and the other side saying that it didn’t happen,” said Chin, a former Hawaii Attorney General. “And so, sometimes it means it’s difficult to sustain a complaint.”

When there is footage, it often exonerates the police officer, Chin said.

Increasing penalties for body camera violations would be up to the police chief, who has sole discretion on HPD policy and disciplinary action. 

Commissioner Carrie Okinaga said in March that officers sometimes turn their cameras on, off and on again, which raises suspicions about whether they’re hiding something. 

When it comes to officer discipline, Okinaga said the department should eventually institute a “presumption that there was a reason somebody turned off a camera.” 

Jacquie Esser Honolulu Prosecutor candidate 2020.
Public defender Jacquie Esser says juries should discount the testimony of officers who fail to turn their cameras on. Cory Lum/Civil Beat/2020

At the time that HPD first introduced cameras, officers could reasonably say that they forgot to activate it because they weren’t used to it, Chin said. Now that many officers have been using them for years, he said that excuse is wearing thin. 

“I think it’s becoming harder and harder to just give the officer the benefit of the doubt,” Chin said. 

To even the playing field in court, Esser believes juries should be instructed to discount the testimony of officers who fail to activate their cameras.

For instance, the court could tell juries that if they find that the failure to record was “unreasonable,” they can devalue the officer’s testimony and infer the video would’ve helped the defendant’s case, Esser said. 

In cases where a jury finds an officer acted in “bad faith” by intentionally failing to film, the jury could be instructed to disregard the officer’s testimony altogether, according to Esser. 

The idea was explored in a recent American Civil Liberties Union report called No Tape, No Testimony.

“There needs to be some kind of sanction for it,” Esser said. “Otherwise, it’s just meaningless.”

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